The Business End of the Stick

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This is a short amendment, but it has large implications for our society.  Without getting too preachy about the numbers, take a gander at this: Worldwide Incarceration Statistics.  Please do not tell me that you think that is okay in a nation that reveres freedom as a founding principle.  Also, please do not fall away from the horror of that statistic by insisting that China probably has more people in jail than they let on, which may be true, but it actually doesn't matter because I don't want to compare my country to China when it comes to justice and human rights.  I don't care what they do, they're nasty, horrible, oppressive and all that stuff, but according to this, we're worse than them at locking people up.
So what's up? Are we inherently more criminal than other countries?  I'm thinking about comparing similar countries like the UK, Canada or Australia, which increases our shame (Canada is not even on the list in the article above, it's about 106/100K compared to 737/100K for the US).  Why on God's green earth does our northern neighbor only have 1/7th of our incarceration rate?  They have big cities, they have poverty and drug problems, what's the deal here?  It's pretty complicated, so I'm going to make a list:

1. The "War" on Drugs: Since I was a kid we have been engaged in a national struggle against illegal drugs.  Non-coincidentally, this also marks the explosion of the incarceration rates.  The terminology and the mindset we use here matters a great deal.  We have treated drugs as an enemy, and thus we have treated users, addicts, dealers and suppliers as the armies of that enemy.  I don't wish to engage in arguments about legalization or normalization of drugs here.  I am just convinced that the reason why our prisons are stuffed like a thanksgiving turkey has mostly to do with the zealous hatred inspired by the war on drugs.  We have allowed our enemy to define us and make us into precisely the sort of monster we thought we were battling in the Cold War: a state that scoops up "undesirables" and robs them of their freedom and submerges them in a dystopian "corrections" system where their chances of ever getting back to a "normal" life is practically nil.
2. Privatization of Prisons: I get it, we're a capitalist society, and since we're going to be locking up so many people, we ought to let somebody get rich off of all that wasted human potential.  It's a long standing human tradition: you fail, you lose, you break the law, you become someone else's slave or cash cow, you might as well do someone some good.  The problem is that the "corrections" system, in the best of all possible worlds, should be about rehabilitation and restoration rather than strictly about punishment.  Contracting that duty out to the low bidder, just isn't a very good idea.  It leads to what amounts to cruel and unusual punishments: poorly staffed prisons overrun with gangs, rapes, drugs and all the things you might hope would be absent from a place designed to get folk back on the right path.
3. Racism: Prisons are just full of black and brown people, at an alarmingly high rate. I'm not even going to go into more detail about this, because I'm just too sad.
4. False ideas of retribution and vengeance equaling justice: This is probably the root cause of a lot of our problems: an eye for an eye, a tooth for a tooth.  We think collectively that the only way to have justice is retributive, not restorative.  Why, in 2016, do we still have capital punishment?  Why is our correctional system so out of whack?  It has to be a philosophical and fundamental problem with our approach.  We think more violence will make us safe.  We think fear of consequences will stop those who would do harm.  History has proven that both of these thoughts are fallacies.  The fact of the matter is that most of the people in the correctional system didn't start out with the intent to harm others (some of them did, so I'm not going to say we don't ever need to lock people up).  A lot of criminal journeys are simply the result of making some poor life choices, and far too many of them are related to addiction (see #1). the only solution to the problem is some very hard work of transforming our approach to dealing with crime. It's going to require a consistent focus on the criminal as a human being who is in need of restoration rather than a virus that must be quarantined and/or purged from the system.

What we have now is a blatantly unconstitutional system.  It is broken, it is cruel and unusual, it is excessive in some way at almost every turn. Justice is obviously not blind or equally applied across the socio-economic spectrum.  People who steal millions get lighter sentences than people who steal hundreds or sell a couple bags of dried leaves. Find anything in this that actually resembles justice.
It is obvious that we cannot let criminals run free in the world to harm the law abiding citizens and the innocent, but somewhere between anarchy and where we are now, there must be a place where the scales balance.

Common Law

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be re-examined in any Court of the United States, than according to the rules of the common law.

In 1791 twenty dollars was a lot of money to most people, it meant that this statute was not meant to apply to every trivial little dispute that came down the pike.  In fact, there are several ways to calculate the actual value that a 1791 twenty-twen represents in today's dollars.  The results are interesting to say the least. You will of course notice that the low end of the spectrum is not that impressive, both the GDP deflator method and the Consumer Price Index (CPI) method tell us that $20 in 1791 is somewhere in the neighborhood of $500 today in terms of purchasing power.  However, as an indicator of economic power check out this analysis of what the different methods tell us.  Of particular interest to me was the fact that in terms of economic influence the share of GDP method is actually of value, yes that's the $1,690,000.00 figure.  The article referenced above compared Warren Buffet and John D. Rockafeller in terms of overall power, and found that Rockafeller with a mere $1.4 billion net worth was nearly four times as powerful in his day than Buffet with a net worth of $62 billion.
Why does this matter?  Because the world is different now than it was then and, as I have stated previously, we obviously need to do some interpretation, which leads us to less than black and white conclusions.  What should the threshold for a jury trial in a common law case be?  Surely even the strict constructionists don't want a bunch of $20 lawsuits clogging up the courts, right?  What about $500, is that worth the time and trouble?  Admittedly, $1.7 million is probably a bit of a high threshold but jury trials are expensive and time consuming, and forcing certain types of minor issues through jury trials has created a theater of the absurd in certain corners of the legal system.  Not to mention the fact that a jury is far from the sacred institution that our beloved founders probably envisioned.  These days juries can be misled and manipulated and sometimes just be wrong.  They can award exorbitant punitive damages because some defendant came across as smug, and they can deny justice to a plaintiff who is just frankly an annoying human being.  Juries are made up of humans, who have an emotional response to being stuck listening to a couple of angry neighbors arguing about cracks in the sidewalk or a tree falling on someone's roof.
But the large majority of legal stuff that happens is common law stuff, and so this ends up being really important.  Despite what TV might represent, most legal stuff is stiflingly boring.  It's lawyers and paperwork.  Ask a lawyer you know, we all know at least a few, most of them will be able to count actual arguments in front of an actual jury on one hand, and a good number of them will admit to never having done it ever.
But trial by jury is an important right we have, should we ever need it.  It is, however, in most cases in our best interest to not need it.  Which fact leads me to one of the overarching realities of making sense of our rights as citizens: often times the system requires us to be sensible about exercising those rights.  In college, I was required to take Business Law 243, a basic course in common law for us science types who might someday have some sort of interface with our esteemed legal system.  The professor asked us early on in the semester: "What are you allowed to sue people for?"  Most of us, being neophytes to the law started talking about negligence or serious harm depending on whether we focused on the cause or the effect of the infraction.  He fielded a few of our tentative answers, some of which sounded actually pretty reasonable.  Then finally, when he had had his fun, he said, "You can sue anybody for anything at any time."
The result was predictably stunned silence.  This was a man who had actually done a good bit of argument in front of juries, he looked vaguely like Perry Mason, which didn't hurt the over all impact, and had a large booming voice.  "Of course, you have to prove damages, and you have to make your burden of proof that there was intent or negligence or some of the things you were all talking about. None of your answers were all wrong, but you need to know that the law actually allows for civil lawsuits to be brought for pretty much any reason."  He went on to explain how and why frivolous lawsuits were punished by the legal system and how, in his opinion, tort reform was the single most important issue that needed to be addressed in our legal system to weed out the nonsense that just bogs us down and prevents us doing the really important work of peace and justice.
That is most of what I remember from BLAW 243, but it made an impression, and gave me a rather different trajectory on all things legal than I would have had otherwise.  And it also made me rather grateful that our system is separated out into civil and criminal law, and that we have lawyers who know what they're doing, or else we'd all be in a heap of trouble.

Crime and Punishment

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory processes for obtaining witnesses in  his favor; and to have the Assistance of Counsel for his defense.

We have all heard the Miranda statute being practiced on TV cop shows, which includes elements from both amendment V and VI, and we think that is sort of what we need to know about our rights vis-a-vis the criminal justice system.  However, criminal justice is complicated, because crime is complicated.  One of the founding principals of our criminal legal system is that defendants are "innocent until proven guilty."  However, as  you may notice that exact phrase is not present in the primary statutes of the constitution dealing with criminal justice.  It must be assumed, and it can be assumed with reasonable certitude by the outline of how one accused of a crime is treated.
The important thing to notice here is that these codes enforce the ability of the accused to defend themselves.  It is also established that the jury system, and jurisdiction are important components of anything like a "fair" trial.
In reality, you can abide by the letter of these laws and still wind up with a horrible miscarriage of justice, because human beings are involved at all levels.  Humans investigate the crimes, humans accuse, humans defend, humans sit on juries, humans are prosecutors and humans are defense attorneys, humans are judges, and humans can always mess up.  Humans can be subject to emotional bias, racism, prejudice of all sorts, they can be offended by the nature of an accusation and the pathos of the victim, they can also be hardened by a victim that seems unsympathetic.  A legal process is designed, in theory, to go after the truth, but often the egos and failures of the human beings involved in it can make it about something else.
The wisdom of V and VI is that they attempt to account for some of these variables.  The massive work of tracking and analyzing case law is what makes attorneys earn their money. The terms of Amendment VI are fodder for lawyers: what is speedy? What is impartial? How to figure out what witnesses to call and when?  What is proper evidence?
Justice ends up being far from blind.  And also far from just, far too often.  The waves of exoneration that have been rolling in as old evidence is re-examined using available DNA testing methods is proof that this system has broken down more often than we would like to imagine.  The incarceration statistics of this nation, and the fact that we still practice capital punishment are signs that we have stalled on the journey towards a just society.
These basic guidelines cannot possibly have envisioned the world in which we live, even in terms of scale.  These basic guidelines could not have imagined the OJ Simpson Trial or the twenty four hour news cycle.  These basic guidelines could not have predicted that, one day, in certain kinds of cases, the victims and the witnesses would need to be protected as well from abuse by the very justice system.
These guidelines were a projection of an era that was already coming to an end.  These guidelines assumed that the justice system was primarily for land holding white men, and women, slaves and people of other races were going to be treated largely as property  They were almost two hundred years ahead of the war on drugs and the civil rights movement.  They were 130 years ahead of women's suffrage.  The were blissfully unaware that the society they knew would be entirely torn apart and reformed by a Civil War and an industrial revolution.  They were also seemingly naive about the fact that the future course of their society would take several steps back intellectually and culturally from where they stood at the high point.
I leave you with this bit of wisdom from Sir Terry Pratchett:

I guess we still have to work at this then.

Okay, VI is Going to Have to Wait

The Constitution will still be here later.  But lo, and behold, there's another tragedy that needs mourned, actually there are several that have gone down recently that don't necessarily get the press that Brussels or another Western nation might have gotten: Ankara, Nigeria, Iraq, people died at the hands of terrorists, lives were ended and families torn apart.  Lord, have mercy.  None of this is okay, all of them deserve a proper notice, but it was Easter week, and I had a funeral to prepare on top of everything else, so the blog got bumped out of the list of things to do.
Never fear though because the toxic phlegm blob has graced us with yet more senseless acts of violence, and this time it is in a time and place that demonstrates how clueless and benighted they actually are: they blew up a bunch of Christians in Lahore Pakistan as they celebrated Easter.  Don't get me wrong, I am not, in any way negating this as a brutal act of violence and evil.  And I understand that many Christians have become so enamored of the empire, power and privilege of Christendom that they may still react with violent speech and maybe actions of their own, but for those of us who actually pay attention to the actual Jesus story, this is absolutely not surprising.
First of all, let's start with the nature of Christian faith in Pakistan.  None of the people who were gathered to celebrate the resurrection in Lahore were doing so in the bubble of security that we in the west enjoy.  At best, they hoped to be left to their observance in peace, but they knew that, even with non-terrorist Islam (which is most of Islam) they are still on the infidel list.  Culturally that puts them in a minority, religiously, it means they really understand what it means to believe despite the threat of being "hated by the world."  If you have any understanding of world Christianity and the history thereof, you will know that this attack, far from dissuading or diminishing Christian community in Pakistan, will strengthen it and give it more power and credibility among the people there.  The church in Lahore needs our prayers, they need our expressions of shared faith and hope, they do not need us to save them, especially not by taking vengeance or trying to kill their persecutors.  That's not how this Jesus thing works, so put away your sword.
Second of all, I want to talk to you 'Merican Christians.  I want you to look at the pictures from Lahore, that is what persecution looks like.  It is not being forced to make cupcakes for a gay wedding or having the ten commandments removed from the courthouse lawn, or anything of the sort.  I also want you to go behind the surface stories, and pay attention to how the church in Pakistan responds to this.  I don't even know what exactly they're going to do yet, but I guarantee it won't be saber rattling and calling for vengeance.  Do not take your eyes off of Lahore after our news cycle leaves it, use this thing called the internet and continue to pay attention to them.  Watch what they do, watch how they heal, watch how they live into the resurrection that they were celebrating.  Pray for them sure, but also keep watching to see what the crucified Lord does in the midst of their suffering.  I'll bet you dollars to donuts it will be amazing, and it will shame the fear mongering, violence ridden sort of propaganda you are liable to see from so-called Christians in their comfortable western bubble.  But watch those hairless talking monkeys too, and compare and contrast.
Pay attention to how those who grasp at worldly power and security react to this tragedy, and pay attention to how those who genuinely hope and trust in the power of the crucified and resurrected Christ do it.
This is where genuine Christian faith shines.  This is where the families of the Mother Emmanuel church victims stand up at the arraignment and forgive Dylan Roof.  This is where we as a people of faith show that we know something that the rest of the world fails to apprehend: that love is stronger than death.  The way of the cross can be bloody to be sure, and things can seem dark, but for those in Christ that tomb always ends up empty, as it did yesterday, and as it will continue to be by the power of God in Christ Jesus.

Side Track

I'm halfway through the Bill of Rights, but I have to take a moment to comment on Brussels.  Congratulations Belgium, you have now joined the club that no one wants to join.  It's sort of like the parents who have lost children club or the HIV positive club, it's utter crap, but once you're in you just need to learn to deal with it.
Let me just say Belgium, that you're really like the last country I thought would be joining this list.  I mean, who is next? Amsterdam? Switzerland?  Seriously, these ISIS clowns are now just picking on the little kids on the block.  Seriously, maybe Lichtenstein or Monaco is more your size you band of festering rapist bullies.
You know what? I'm tired of treating Daesh like a serious thing, I think treating them like a serious thing is counterproductive.  The more seriously we take them, the more our fear builds up, the more power they have over us.  So let's take stock here, the basic reality is that we are not going to be able to defend the entire civilized world from these goat-buggering fools, because they are terrorists and cowards and they attack theaters and trains stations and airports, and places where normal people do normal things, and they can look like normal people doing normal things, but with bombs and guns under their windbreakers and in their fanny packs.
Also, everybody hates these guys already, everybody condemns these perfidious anal warts already.  Muslims, Jews, Christians, Atheists and Hindus alike, all say that Daesh is scum, even the Buddhists and probably the Hare Krishnas think they deserve to be cast off of the wheel of existence, but here's the thing, hate feeds them.  Fear makes them strong.  If we let our hate and fear run us, they win.
We have to be better than they are, and I'm not talking about military might.  There is no doubt in my mind that we could, with the proper exercise of political will and military strategy, utterly destroy Daesh, wipe them off of the face of the earth.  We could do it without using nukes, or we could just take that shortcut.  Whatever, we've got the muscles, but guess what?  If we do that we lose.  We lose our humanity, we have let the subhuman filth of Daesh take our humanity, and that will not easily grow back.
In case you can't tell, I would like to spit on Daesh, but they're probably not worth the saliva.
The internet is exploding with the same sort of impotent rage and hopeful but useless platitudes about thoughts and prayers and such.  Here's an idea, let's take away their platform.  Let's not call them anything anymore, not ISIS, not ISIL, not even Daesh (which I understand they don't like), let's not allow them to take credit for this stuff anymore.
Let's pay attention and report what really matters: people died today in Brussels Belgium as the result of a bomb.  People were shot in a theater in France in November.  Lives ended tragically and senselessly. Deal with that, don't pretend that knowing who did it or why makes any difference.  It doesn't, treat it like an earthquake or a tsunami: a tragedy.  Let's treat them as an inhuman problem, because they are exactly that: inhuman.
I'm not saying they're a different species, I'm saying that they have given up any claim to basic humanity.  Their actions cannot be justified by the rules of their own religion, or by their political aims, or by their suffering and poverty, they have gone way past that line and become sadists and psychopaths.  They are profoundly immoral by the standards of Islam.  They are brutal to everyone in their path, even the ones with whom they used to share racial, ethnic and national identities.  They have left behind almost every marker that would identify them as a part of the human race, every bond of fellowship and commonwealth has been abandoned for rabid hatred and brutal violence.
My greatest fear is not that we will suffer more savagery at the hands of these cretinous deposits of phlegm, we certainly will.  My greatest fear is that we will allow them to define us, and suck us into the primordial ooze of hatred and violence, and we will become like them.
To defeat them, we must remain better than them, we cannot take the fight to their level, because once we go there, we have lost.  When we commit to the killing of innocents, even if we call it collateral damage, we have lost.  When we lash out in anger and fear, we have lost.  When we torture and violate human rights, we have lost.  When we distrust our neighbors because of their race or their religion, we have lost.  If this enemy drags us into any of those situations, they will have won, even if we succeed in wiping them off of the face of the earth.

1, 2, 3, 4, FIFTH

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or an indictment of a Grand Jury, except in cases arising on the land or naval force, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

And the award for skillful use of the semicolon goes to Amendment V!  Everybody give her a big hand!  Seriously, given the gravity of the rights presented above, it really probably deserves more than one sentence, especially given the fact that at least a few of these things can and are probably open to rather wide interpretations.  "Capital or otherwise infamous crime," but not all crime, because that would be ridiculous, but where do we draw that line?  What makes us so sure that Grand Juries are some sort of safeguard nowadays, when mostly they just rubber stamp the recommendations of the prosecutor?  Does this Amendment V really protect us in practice?
This is where the rubber hits the road in our world today.  The television series Law and Order and its spinoffs have been on TV for decades near the top of the ratings heap in part because the interpretation and practice of Amendments IV and V, produces a stunning array of dramatic possibilities.
And here, as in so many other places, we need to acknowledge the fundamental wisdom of these principles, in that they can be applied as well as they are in a world that would have been absolutely unimaginable to the authors.  They have that in common with Biblical law.  But it is also necessary to acknowledge the very different worlds of the late 18th century and the early 21st century.
First of all, the majority of crimes that our legal system handles are not the "capital or otherwise infamous" type.  Traffic violations, drug offenses (possession and small time distribution), parole violations, DUI cases, debt default, I could go on, but the point is that the massive machinery of our legal system has and does function with these guidelines in place.  It has adapted and changed and will continue to do so.
For instance, in the early days prisons were few and far between. Jails were temporary modes of punishment for people with bad debts or who got a little drunk and disorderly.  Long term "storage" of criminals was rendered unnecessary by the gallows and the hangman.  The bar for capital punishment was lower than it is now.  Over the years we have raised that bar, for the better in my opinion, to a place where we can now honestly and truly consider whether depriving an individual of life is ever justified.  The arc of justice is bending towards a place where the savagery of the death penalty is no more.
In recent years voices have begun to raise around the issue of incarceration, or rather the inordinate level of incarceration we have here in these United States.  This gets into some rather muddy water though, because society relies on the rule of law and the ability to enforce those laws.  As much as I would advocate for restorative justice, I am not so naive as to ever believe that we can completely do away with retributive justice.  The problem with the system, as it now stands, is that we often deprive the poor of their life and their liberty, where we mostly just hit the wealthy in their wallets.  White collar crime is usually lightly punished while the crimes most often committed by poor people result in lengthy incarceration, which often and consequently perpetuates a cycle of crime and punishment that is very hard to escape.  A few years back Dave Chappelle did a sketch where he put the shoe on the other foot, he humorously illustrated a crack dealer getting the treatment that white collar criminals get.
Now that is funny, but there is a real human tragedy behind this reality.  As Bob Dylan's Lonesome Death of Hattie Caroll points out, justice is not always blind.  The due process of law is not yet a level playing field, and so we still have work to do.  But "due process" and ideas of justice and the seriousness of depriving our citizens of life, liberty and property are still things that are worth holding on to tightly.  True justice is a lofty goal indeed, and an ever shifting one at that.  As much as I hate to admit it, this is probably why we need lawyers (just kidding lawyer friends, I love you folks).

Protection of the Law

Amendment IV:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

This is where things start to get complicated.  There are all sorts of things that are rather open to interpretation in this Amendment.  What does it mean to be secure? In the electronic age what is the definition of papers and effects?  What is unreasonable? What is probably cause?
All of these questions have been asked and answered numerous times through the evolution and revolutions of case law, but none of them has been answered once and for all.  And in many ways this Amendment is violated on a daily basis, often by statutory exceptions (cough: Patriot Act).  Most of the violations have been deemed "necessary" for the public safety.  Some have been recognized and proven to be violations: Stop and Frisk. But the thing about it is that, far too often, the government, and law enforcement have been caught with their hand in the Amendment IV cookie jar.  It's funny (not in the ha ha way) that the very people who often defend the violation of Amendment IV in the name of safety are also the biggest Constitution huggers around.
The fact of the matter is that, if you're going to have this as a right for the members of your society, you are going to inherently increase the danger that one malefactor can do to your society.  You are going to have to turn drug dealers and maybe even murderers loose if the police botch the warrant procedure.  You are either going to have to violate everyone's rights or you are going to have to let terrorists operate under the protections of this Amendment.
What is it going to be America?
Over the past 15 years (and probably longer than that in the "war on drugs") the answer has been: forget about Amendment IV, we want to be safe.  Now, I'm sure that there are legal types who can probably make an argument that exceptions need to be made and "extenuating circumstances" blah, blah, blah.  I'm not a lawyer, and I've basically been making the point that our laws of the land are indeed a work in progress, in need of constant vigilance and evaluation.  I get it.
I am just pointing out that Amendment IV is the place where we are faced most regularly with the dilemma of trying to balance freedom and security (No, I'm not going to use the Ben Franklin quote, because apparently it has been taken out of context, and I freaking hate that.)  A society where everyone was totally free would be anarchy of a dangerous sort.  Here's a good quote about that:

I don't believe in anarchy, because it will ultimately amount to the power of the bully with weapons. Gandhi is my life's inspiration: passive resistance.  I don't want to live in the Thunderdome with Mad Max    -John Lydon, the older and wiser persona of Johnny Rotten, writer and performer of the most famous Punk Rock song ever: Anarchy in the UK, by the Sex Pistols

Prefer a little more erudite source? Here is Henry Ward Beecher:

The worst thing in this world, next to anarchy, is government.

And Aldous Huxley:

The worst enemy of life, freedom and the common decencies is total anarchy, the second worst enemy is total efficiency.

So here's where we are: no law is perfect, and no guarantee of rights under those laws is infallible.  Our society, including the rights and principles we hold sacred, are a work in progress.  The work of lawyers, legislators and judges, as I understand it, is largely beholden to following the train of precedent, which makes the progress often times painfully slow, but necessarily so.  Sometimes we get scared and rush to give up our freedom too easily.  Sometimes we are arrogant and cling to freedoms that are damaging to our neighbors.  I see no evidence that we have advanced beyond either one of those tendencies, and so laws will always have the unenviable task of protecting us from ourselves.